When two executors are appointed without distinction in their authority, can one act alone if the other ceases to serve?
General Chapter
Al-Mughni
Book of Bequests
Primary text
It is permissible for a testator to appoint two executors. If they are appointed absolutely without specific division of power, neither one may act individually. If one of them dies, becomes insane, or is removed, the judge appoints a trustworthy person in his stead because the testator did not consent to the sole management of the remaining executor. The judge is not permitted to return the authority solely to the remaining executor.
Supporting text
The associates of Al-Shafi'i mentioned an opinion permitting the judge to grant sole authority to the survivor, arguing that if the authority would revert to the survivor alone upon the testator's death without a bequest, it should be so here. This makes the survivor act based on the testator's bequest and the judge's trust. However, the primary position holds that since the testator did not consent to the sole action of either executor, another must be joined, as the bequest takes precedence over the judge's discretion.